The accused, No. 33054 PC OYAT MARTIN, was indicted for murder contrary to sections 183 and 184 of the Penal Code Act. The particulars of the offence alleged that on or about the 28^th day of July, 2001, along Ben Kiwanuka Street, No. 33054 PC Oyat Martin murdered one BABIGUMIRA GEORGE. On arraignment the accused denied the indictment where upon the prosecution called ten witnesses to prove its case. In his defence the accused made an Unsworn Statement but called no witnesses.

The Prosecution case is as follows:-

The accused was a police officer on night patrol duty along Ben Kiwanuka Street in Kampala City on 26/7/2001. The deceased was a student at Makerere University. At around 11.00 pm the deceased, who was in the company of a friend called Can Mark Lain (PW2), walked to Bata Mini Price Stage, along Ben Kiwanuka Street, to get a taxi back to Makerere University. While at the stage the accused, who was armed with a gun, chased the deceased towards Shell Ben Kiwanuka Street, and eventually shot the deceased, who was lying down, through the chest. The deceased was rushed to Mulago Hospital where he died on 28/7/2001.

In the same night of 26/7/2001 AIP Matte Godfrey (PW3), who was the Commander of Police vehicle No. UP 0180 where PC Oyat Martin (the accused) was supposed to be, started looking for the accused. He found the accused at Central Police Station (CPS) Kampala, at the counter, recording a statement. AIP Matte Godfrey (PW3) ordered the accused to surrender his gun No. 56-31006393, an AK 47 SMG which had a magazine containing 28 rounds of ammunition. The gun and its magazine were admitted in evidence as Exhibit P.5.

At 6.45 am on 27/7/2001 No. 25634 CPL. Amandi Manson (PW7) went to the scene of crime at Shell Ben Kiwanuka Street and he recovered a spent Cartridge. The said Cartridge, having Number 911 on top and Number 86 below, was admitted in evidence as Exhibit P.3.

The accused was arrested and detained at CPS, Kampala.

Dr. Nalwoga Haawa (PW1) a specialist Pathologist, on 28/7/2001, at the City Mortuary, carried out a Postmortem examination of the deceased’s body. She prepared and signed a postmortem report No. 872/2001 on Police Form 48B dated 28/7/2001, in respect of the deceased, which was admitted in evidence as Exhibit P.1.

 Gakyaro Francis (PW5) a Detective Superintendant of police (D/SP) and a Firearms and Ballistics Expert test fired an AK 47 gun No. 56-31006393 (Exhibit P.5). A used Cartridge with Serial Numbers 16 on top and 17 below marked F. 104/01 TC was admitted in evidence as Exhibit P.4.

 Gakyaro Francis (PW5) carried out an examination of the gun (Exhibit P.5), twenty-eight rounds of ammunition in a Magazine, and a fired Cartridge case (Exhibit P.3). He made a report of Laboratory reference No. F.104/2001 dated 18/9/2001, which was admitted in evidence as Exhibit P.2.

 CPL. Cheboriot John (PW9) who, on 26/7/2001, in the evening, issued to the accused the gun (Exhibit P.5) with 30 rounds of ammunition, tendered an entry No. 32 in the Armoury book made on the same day, relating to the accused which was admitted in evidence as Exhibit P.6.

On 13/8/2001 No. 20576 D/CPL. Opio Christopher (PW8) filled in Police Form 17A which he used to submit exhibits to the Firearms and Ballistics expert. Robbina Kirinya (PW10) a Government Analyst in Ballistics tendered the original PF. 17A marked Laboratory No. F.104/2001 which was admitted in evidence as Exhibit P.7. Robbina Kirinya (PW10) received the Exhibits for examination from D/CPL.Opio Christopher (PW8) and she entered them in the Firearms Register on 14/8/2001. Her entry in the Firearms Register relating to Laboratory No. F. 104/2001 was admitted in evidence as Exhibit P.8.

On 27/7/2001 the accused was charged with Attempted murder contrary to section 197 (1) of the Penal Code Act and taken to court. He was remanded in Prison. Following the deceased’s death the charge was amended to become Murder contrary to sections 183 and 184 of the Penal Code Act. On 19/9/2001 the amended charge was read to the accused and he was further remanded in custody.

The accused, in his Unsworn statement, denied committing the offence for which he was indicted. He admitted that on 26/7/2001 at around 11.50 pm he was armed with an AK 47 SMG and he proceeded to MiniPrice Bata while escorting a Taxi driver suspect from CPS, Kampala. He stated that at the time a gunshot was heard from the direction of Shell Ben Kiwanuka Street they (him and the Taxi driver suspect) were at the junction between William Street and Ben Kiwanuka Street. He stated that he rushed down to the scene where, at the entrance to Shell Petrol Station, he found an adult male wearing Civilian clothes lying down in a pool of blood. He stated that from that time he put all his efforts to saving the life of the victim. He put up a defence of an alibi. He stated that he only came to the scene as a good Samaritan and a police Officer mindful of his duty.

The prosecution had to prove beyond reasonable doubt the following essential ingredients for the offence of murder, namely:

(i)     

That a human being by the name of Babigumira George is dead;
(ii)     That he died as a result of an Unlawful act;
(iii)    That the Unlawful act was accompanied by malice a forethought;
(iv)     That the Unlawful act was committed or participated in by the accused person.

The burden of Proof rests upon the prosecution to prove the guilt of the accused person beyond reasonable doubt.

See: WOOLMINGTON V.D.P.P.(1935) A.C.462 at P.481 Per Viscount. Sankey, L.C. SEKITOLEKO V. UGANDA (1967) E.A.531. OKETH OKALE and ANOR. V.R (1965) EA 553.

It was conceded by Mr. KUNYA HENRY, learned counsel for the defence on state brief, that:
(1)     

Babigumira George is dead; and
(2)      That his death was Unlawfully caused.

Dr. Nalwoga Haawa (PW1) testified that she is a Medical Doctor and a specialist Pathologist working at Mulago and City Council Mortuaries. On 28/7/2001 she carried out a postmortem examination on a body which was identified to her by a mortuary tag as that of Babigumira George. She prepared a Postmortem Report (Exhibit P.1). The deceased was a male aged 20 years and his body was well nourished. As external injuries she observed:
Gunshot wound with an entry at the left chest wall in the axialla (the area under the arm pit on the left). The exit wound was on the right chest wall, just below the scapula bone (below the shoulder blade).
As internal injuries she found:
A ruptured diaphram (a muscle which is at the lower end of the chest cavity which assists in breathing), a lacerated lung with blood in the chest cavity, and a lacerated transvere column (the large intestine) which had been repaired.

She concluded that the cause of death was acute hemorrhagic shock secondary to injuries sustained from a gunshot wound.

She testified that she could tell the proximity between the offensive weapon and the body affected. She told court that in this case the offensive weapon was in close range.

In the circumstances I find myself in agreement with the views of the assessors that the prosecution has proved beyond reasonable doubt that the deceased is dead, and that his death was unlawfully caused.

Only the third and fourth ingredients were contested.


On the third element:-
That the unlawful act was accompanied by malice a forethought,
The prosecution relied on the evidence of Dr. Nalwoga Haawa (PW1), Can Mark Lain (PW2), No. 25121 PC Mafabi Godfrey (PW4) and No. 25634 CPL. Amandi Manson (PW7).

Can Mark Lain (PW2) testified that he saw six men pushing the deceased back wards across Ben Kiwanuka Street. The deceased was saying to them: “Leave me, what have I done to you?” The witness was shouting for help. He had seen a man who was wearing a long coat and holding a gun. The deceased was down on the ground at the exit of Shell Petrol Station and the men were kicking him. The witness heard gunshots and saw sparks. After the gunshots the men retreated and left.

The witness crossed the road and went to the deceased. He was lying on the ground at the exit of the Petrol Station. Blood was coming out of his side. There was a hole on the left side of the chest. The deceased said: “ I can’t believe this man has shot me. Yet I have done nothing to him”.

No. 25121 PC Mafabi Godfrey (PW4) testified as follows:

Driver SPC Masette drove Patrol vehicle No. UP 0180 from the direction of Mini Price Bata. He informed the witness that some one had been shot at Shell Petrol Station, Ben Kiwanuka Street. AIP Matte (PW3) instructed them to board the vehicle and go to the scene. They found CPL. Amandi(PW7) at the scene. Members of the public were trying to put the victim in a Taxi.

The witness saw the victim when he was being transferred from the Taxi to their Police vehicle. The victim was a male. The witness saw blood on him around the chest. He and SPC Kaggwa Abudu rushed the victim on the Police vehicle to Mulago Hospital.
No. 25634 CPL. Amandi Manson (PW7) testified as follows:-

He moved down along Ben Kiwanuka Street to Shell which was the scene. He found someone lying in a pool of blood. It was a male adult. He observed the victim and saw a fresh wound on the left hand side of the chest. Some one who identified himself as Can Mark (PW2) said that he was a colleague of the victim. Can Mark (PW2) identified the victim as George Babigumira a fellow student of Makerere University. The victim was rushed to Mulago Hospital.

Intent to kill is an essential mental element in the crime of murder.
See: S. 186 (a) of the Penal Code Act.
Alternatively, it must be shown that the accused, at the time of committing the act charged knew that, in all probability, it would be likely to cause death of some person.

See: S. 186 (b) of the Penal Code Act.

Malice or the lack of it can be determined by examining the nature of the weapon used, the manner in which it is used, the parts of the body affected and the conduct of the assailant before and after the act.
See: Uganda V. Aramanzani Mubiru (1996) HCB 35 (Musoke- Kibuuka, J).
R.V. Tubere s/o Ochen (1945) 12 EACA 64.
Where the weapon used is a deadly or lethal weapon, or where a lethal weapon is used Savagely, or where the vulnerable parts of the body of the deceased were affected by the injuries, malice a forethought would be more readily inferred by the court.

See: Moses Kayondo V. Uganda,
S.C. Criminal Appeal No. 11/92 (Un reported).
 Otim Gabriel Ogola V. Uganda S.C.
Criminal Appeal No. 16/93. (Un reported).

A gun cannot be considered to be a deadly weapon unless it is proved that at the particular time it was loaded and capable of discharging a bullet.

See: Uganda V. Kamusini s/o Seku and Anor. (1976)H.C.B.159.

The weapon must be shown to be deadly in the sense of being capable of causing death. If a gun is fired the court has no difficulty in holding that it is a deadly weapon.

In the instant case Can Mark Lain (PW2) testified that he heard gunshots and saw sparks. He saw a hole on the left side of the victim’s chest. Dr. Nalwoga Haawa (PW1) observed, as external injuries, a gunshot wound with an entry at the left chest wall under the armpit of the victim.

So, I find as a fact that a gun was used by the assailant and that it was a deadly weapon. I also find that the left chest of the victim, which was affected by the gunshot, was a vulnerable part of the body.

Can Mark Lain (PW2) testified that the deceased was down on the ground and the men were kicking him. Then he (the witness) heard gunshots and saw sparks. This corroborated the finding made by Dr. Nalwoga Haawa (PW1) that in this case the offensive weapon was in close range. In the circumstances I find that the assailant used the gun, a lethal weapon, savagely on a person who was lying on the ground.

Can Mark Lain (PW2) testified that he saw six men pushing the deceased backwards across the road. The deceased was protesting and requesting the men to leave him alone. When the deceased fell down to the ground the men kicked him. Among the men was one wearing a long coat and carrying a gun. Then the gun was fired. From this evidence I make a reasonable inference that the group of men, including the one holding a gun, were carrying out wanton torture of the victim before the gunshot was fired.

Learned Counsel for the defence submitted that the intention of the assailant was not known and, therefore, it was difficult to determine the issue of malice a forethought.

The learned State Attorney, Mr. Bakora Arinaitwe Brian, submitted that whoever caused the death of the deceased had malice a forethought. He referred to the evidence of Dr. Nalwoga Haawa (PW1) and Can Mark Lain (PW2). He submitted that the killer of the deceased was armed with a gun, a deadly weapon. He referred to the evidence of Can Mark Lain (PW2) that the deceased was lying down, helpless and being beaten, when an armed man shot him. Counsel referred to the evidence of Dr.Haawa Nalwoga (PW1) that the deceased was shot through the left chest wall, under the armpit. Counsel submitted that this is a very dangerous area. He invited court to infer malice a forethought.

The learned State counsel submitted that if the intention of the assailant had been to arrest the deceased he could have:

(i)     

Held the deceased by hands, since he was already on the ground; or
(ii)     Shot in the air to scare him; or
(iii)    Shot the deceased at the legs to disable him; or
(iv)     Sounded a verbal warning to the deceased.

Counsel submitted that the use of a gun, loaded with live ammunition, and firing it at a person on the ground, on a vulnerable part of the body, at such a close range was proof of malice a forethought. Counsel invited court to find that the prosecution had proved the 3^rd ingredient beyond reasonable doubt.

The first assessor Ms. Stella Nyanzi Zziwa referred to the evidence of Dr. Nalwoga Haawa (PW1) and said that considering the weapon which was used and the part of the body affected the deceased had no chance of survival. However, she went on to state that the accused did not run away from the scene, and so his conduct was not that expected of a person having a guilty mind. So according to her malice a forethought had not been proved.

The second assessor Mr. Kiggundu Peter considered the evidence of Can Mark Lain (PW2), PC Mafabi Godfrey (PW4), CPL. Amandi Manson (PW7) and Dr. Nalwoga Haawa (PW1) who testified about an injury on the deceased’s chest. He, particularly, considered the evidence of the Pathologist on the nature of injuries inflicted on the deceased, the delicate and vulnerable part of the body targeted, the weapon used, and the close range from which the assailant shot the deceased. However, he also considered the evidence that the accused was found at the scene of crime. The assessor had this to say:
“ He must have tried to give a helping hand. This is an indication that he had shot at the deceased mistakenly. In other words he came to realize that he had shot at a wrong person. He must have regretted his ruthless action”. The assessor concluded that the prosecution had not proved the third ingredient beyond reasonable doubt.

It is clear that both assessors looked at the accused as the assailant. In both cases the assessors came to this conclusion before considering the evidence which was adduced concerning the participation of the accused in the crime. Both assessors examined the conduct of the accused after the deceased had been shot at. At this stage neither of the two assessors considered the accused’s evidence as to how he came to be at the scene. Nor did they analyse the prosecution evidence concerning the presence of the accused at the scene. With due respect to the assessors, I am of the view that they made inferences relating to the accused’s conduct before establishing the primary facts concerning the accused’s presence at the scene. Consequently, in my view, the assessors drew inferences which were not supported by any evidence.

This difficult exercise of drawing inferences from non-existent primary facts over shadowed the assessor’s appreciation of the prosecution evidence of facts from which malice a forethought could be inferred.

I am not bound to follow the opinions of the assessors. Where the assessors’ opinions are based upon a clear misconception of the law or facts, and this is reflected in their opinions after proper and careful direction by the trial judge he is perfectly entitled to differ giving his reasons for so doing.

See: Charles Komiwswa V. Uganda (1979) H.C.B. 86 (CA).

In the instant case, for the reasons I have given here in above, I differ from the opinions of the two assessors. I am satisfied that the prosecution has proved beyond reasonable doubt that when the assailant opened gunfire on the deceased he knew that in all probability it would be likely to cause his death. It is my view that the prosecution has established beyond reasonable doubt that the unlawful act was accompanied by malice aforethought.

The fourth ingredient to be considered is the question whether or not the unlawful act was committed or participated in by the accused person.

The prosecution relied on circumstantial evidence. Where the evidence is circumstantial it must be such that it produces moral certainty beyond reasonable doubt that it is the accused person who committed the crime. In order to support a conviction circumstantial evidence must point irresistibly to the accused person as the one who committed the offence for which he is indicted. Circumstantial evidence must be inconsistent with the innocence of the accused person. Circumstantial evidence should be incapable of explanation upon any other reasonable hypothesis than that of guilt of the accused person.

See: Charles Kayemba V. Uganda (1985) HCB 9 (CA).
Uganda V. Stephen Mawa alias Matua (1992-93) HCB 65.

The onus remains on the prosecution throughout and never shifts to the defence.
See: A.Z. Rubashoka V. Uganda (1971) I.U.L.R. 17.

It is the duty of court and the assessors, in dealing with circumstantial evidence, to consider every possible set of circumstances, in the process of determining whether the evidence, is incapable of explanation upon any other reasonable hypothesis than that of guilt of the accused person. The court and the assessors must examine every other reasonable possibility, and test it against the evidence.

See: Sharmpal Singh V. R (1960) E.A. 762 (CA) at P. 776.

The court and the assessors are supposed to ensure that whatever inferences are made, there is no reasonable explanation to them other than the guilt of the accused person.

See: SIMON MUSOKE V.R (1958) E.A. 715.

The facts proved by the prosecution must be such that there are no other Co- existing circumstances which would destroy the inference of guilt.

See: TEPER V.R (2) (1952) A.C.480 at P 489; or (1952) 2 ALL.E.R.447 (P.C) at P.451.

 AIP Matte (PW3) testified as follows:-
He had PC Oyat on Motor vehicle UP 0180.
At around 10.00 pm they arrested Taxi drivers and Conductors from Mini Price Bata. They took them to CPS, Kampala. They carried suspects twice. The witness instructed the accused to pick a driving permit from Mini Price Bata. When the witness took suspects to CPS, Kampala on the first trip he had all the members of his Patrol group who were five in number. After dropping suspects at CPS, Kampala on the second trip he realised that the accused was not with him.
He had been sent by the in charge traffic, through the witness, to go and pick a driving permit.

PC Mafabi Godfrey (PW4) testified as follows:

On 26.7.2001 at 18.00 hours he was deployed on UP 0180 for night Patrol. At 20.50 hours AIP Matte (PW3) took over the vehicle as commander. PC Oyat joined the group on the vehicle. They were all armed with AK 47 rifles.
They arrested some stubborn Taxi drivers and took them to CPS, Kampala. PC Oyat sat in one of the Taxis. AIP Matte together with PC Oyat and the Taxi drivers entered the station at CPS, Kampala. AIP Matte (PW3) instructed the group that they were proceeding to Arua and Nebbi Parks to arrest suspected opium smokers. At the time they set off from CPS, Kampala PC Oyat was not on the vehicle. They went to Arua Park and parked the vehicle opposite Total Petrol Station. PC Oyat came on foot and by passed them. They were still on the vehicle. PC Oyat was armed and he moved towards Mini Price Bata.
Can Mark Lain (PW2) testified as follows:-
He and George were walking from Mini Price Bata towards the taxis along Ben Kiwanuka Street. A man who was wearing a shirt which had flowers across the chest grabbed the collar of George’s Shirt and pulled a bag George was carrying over the shoulder. A group of about six men came from behind. They joined the first man. They started kicking and slapping George. The man wearing a flowered shirt disappeared. The six men pushed George. He was made to cross the road backwards. They reached the exit of Shell Petrol station. George was down. The men were kicking him. The witness heard gunshots and saw sparks. He saw a man wearing a long coat with a gun among the six men. At the time of the shooting the man wearing a long coat and carrying a gun had his back to the witness. The witness shouted to him for help. He saw only one person holding a gun. After the gunshots the six men started leaving. The witness could not describe what the six men were putting on. Soon after the witness saw a policeman in uniform talking on a mobile phone. Much later a Police Patrol vehicle came to the scene.

No. 25634 CPL. Amandi Manson (PW7) testified as follows:-
On 26/7/2001 between 10.00 and 11.00 pm he was on foot patrol along William Street. He heard a gunshot which came from the direction of Shell Ben Kiwanuka Street. He rushed to Shell which was the scene. He found SPC Turyaheebwa, armed with a baton, standing with PC Oyat Martin, about five metres from the victim. The victim was lying down. PC Oyat was armed with an SMG rifle. The witness asked SPC Turyaheebwa who shot the victim. He had no answer. He asked PC Oyat but he too did not say anything. He then asked Ogoola and Nzeyimana, who were securiko guards at shell, who were armed with SLR rifles. He got no answer about the gunshot. He came back to SPC Turyaheebwa. PC Oyat had left. The witness arrested SPC Turyaheebwa and took him to Kikuubo Police Post.

No. 32463 PC Driver Masette Micheal (PW6) testified as follows;-
On 26.7.2001 he was on night duty. He was driving Motor Vehicle UP 0180. At around 10.00 p.m he had parked the vehicle opposite mini price Bata. He saw people chasing somebody towards shell petrol station. He was about to enter the vehicle. As the group approached the exit of shell he heard a gun shot. After the gunshot these people started taking off. He entered the vehicle, made a U-turn, and drove upwards along Ben Kiwanuka Street. He saw a man lying down at the exit of shell petrol station. He was alone. Later he drove back with AIP Matte (PW3). He met at the scene CPL. Amandi (PW7). His commander instructed him to rush the victim to Mulago Hospital. From Mulago Hospital he drove back to the scene. He saw his commander talking to a security guard at the scene. His commander moved around. He came back and told the witness that he was looking for Oyat. Later he drove his commander back to CPS, Kampala. He went to the counter at the station. He heard his commander say: